Jammu & Kashmir High Court

Aftab Ahmed And Another vs Mst. Neelam And Another on 10 February, 2023

     HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                     AT JAMMU
                                                Reserved on : 28.12.2022
                                                Pronounced on: 10.02.2023

                                                CRM(M) No. 417/2021(O&M)


     Aftab Ahmed and another                       .....Appellant(s)/Petitioner(s)


                         Through: Mr. Ved Bhushan Gupta, Advocate
                    vs
     Mst. Neelam and another                                   ..... Respondent(s)


                         Through: Mr. R. D. S. Bandral, Advocate

     Coram: HON'BLE MR. JUSTICE RAJNESH OSWAL, JUDGE

                                  JUDGEMENT

1. The petitioners have filed the present petition under section 482 Code of

Criminal Procedure (Cr.P.C.) for quashing the criminal proceedings

arising out of a complaint, titled, "Neelam vs Talib Hussain and others"

as well as the order dated 10.07.2021 by virtue of which, learned JMIC,

Billawar has issued the process against the petitioners and the proforma

respondent No. 2.

2. It is stated that the petitioner No. 2 is a registered owner of the Truck

bearing registration No. JK08A-9569 and vide agreement to sell dated

23.11.2020, the petitioner No. 2 agreed to sell/transfer the aforesaid

vehicle to the respondent No. 1. After execution of the agreement, the

respondent No. 1 failed to pay a single instalment to the finance company

and despite reminder, she did not deposit the instalments and the finance

company started reminding the petitioner No.2-owner that they would

seize the vehicle and take steps to proceed against the petitioner No. 2-

owner under section 138 Negotiable Instruments Act. Faced with such

situation, the petitioner No. 2 himself started depositing the instalments

with the finance company against proper receipt. As the respondent No. 1

failed to perform her part of the agreement, the petitioners took control

of the said vehicle as per the terms and conditions of the agreement to

sell dated 23.11.2020. The respondent No. 1 with mala fide intention on

24.06.2021 after more than three months, filed a complaint against the

petitioners and the proforma respondent before the learned JMIC,

Billawar. The learned Magistrate forwarded the said complaint to SHO

Police Station, Billawar to seek report in terms of section 202 Cr.P.C and

after receiving the report from the SHO, Police Station, Billawar, issued

the process against the petitioners and the proforma respondent No. 2.

3. The petitioners have impugned the criminal proceedings initiated by the

respondent No. 1 and also the order dated 10.07.2021 on the following

grounds:

a). that the matter is purely civil in nature and the launching of criminal proceedings is not only illegal but a sheer abuse of process of law and further that the petitioner No. 2 is a registered owner of the vehicle and continues to be so till date.

b). that the court below was under obligation to atleast record the statement of the complainant on oath to satisfy itself with regard to the commission of offence but the same has not been done.

c). That the order impugned dated 10.07.2021 is absolutely silent with respect to the offences for which the process has been issued against the petitioners and the proforma respondent.

4. The reply has been filed by the respondent No. 1, wherein it has been

stated that the petitioners have raised the disputed questions of facts

which cannot be adjudicated in a petition filed under section 482 Cr.P.C.

It is furhter stated that when the petitioners and the proforma respondent

forcibly took the truck from the possession of the driver of the answering

respondent, the complaint was made to Police Station, Billawar. The

truck was seized under section 207 of the Motor Vehicle Act and then an

application was moved by the petitioner No. 1 by portraying himself as

registered owner of the said vehicle and the same was released in his

favour after furnishing an affidavit before the learned Munsiff Billawar.

It is also stated that the answering respondent started paying instalments

timely to the finance company sometime in cash and sometimes through

online transfer and till the time the truck was forcibly snatched, she had

paid four instalments amounting to ₹ 68,000/-. She also claims to have

spent of ₹ 1,00,000/- so as to make the truck roadworthy. It is also stated

that the statement of the answering respondent was recorded by the

learned Magistrate as is evident from order dated 03.07.2021 and

thereafter the complaint was sent to SHO Police Station, Billawar under

section 202 Cr.P.C. The process was issued only after the report was

submitted by the SHO Billawar.

5. Mr. Ved Bhushan Gupta, learned counsel for the petitioners vehemently

argued that the dispute is primarily civil in nature and the criminal

proceedings have been initiated by the respondent No. 1 just to harass the

petitioners.

6. On the contrary, Mr. R. D. Singh Bandral, learned counsel for respondent

No. 1 vehemently argued that right from the beginning, the petitioner No.

2 had dishonest intention to cheat the respondent No. 1 and further the

disputed questions of facts have been raised by the petitioners which

cannot be adjudicated upon while adjudicating the present petition.

7. Heard and perused the record as well as the orders of the learned

Magistrate.

8. The respondent No. 1 has filed a complaint on the basis of an agreement

dated 23.11.2020, which has been duly admitted by petitioner No. 2 as

well. The relevant portion of the aforesaid agreement is reproduced as

under:

"1. That the party of the first part has received an amount of ₹1,30,000/- (Rupees One Lakh Thirty Thousand only) from the party of the second part and balance amount of ₹ 4,50,000/- (Rupees Four Lakh Fifty Thousand only) shall be paid by the party of the second part to the bank in equal monthly instalments on behalf party of the first part.

2. That the party of the first part has handed over the possession of the aforesaid vehicle along with its all the relevant documents to the party of the second part, who shall be entitled to use the aforesaid vehicle in the manner she likes.

3. That party of the first part undertakes that he shall execute all the necessary documents for transfer of the aforesaid vehicle in favour of the party of the second part after liquidation of entire outstanding amount of the financer by the party of the second part.

4. That part of the second part undertakes that she shall repay the entire loan along with interest outstanding in the loan account in respect of aforesaid vehicle and in case party of the second fails to repay the loan amount, the party of the first part shall be entitled to take the possession back of the aforesaid vehicle from the party of the second part in that event the party of the second part shall have no right to object the same."

9. From the agreement, it is clear that the petitioner No. 2 has received an

amount of ₹1,30,000/- from respondent No. 1 and the respondent No. 1

was under a legal obligation to pay the balance amount of ₹ 4,50,000/-

i.e. the outstanding loan amount in equal monthly instalments. Further,

the petitioner No. 2 was under an obligation to execute all the necessary

documents for the transfer of the vehicle-truck in question in favour of

the respondent No. 1 after the liquidation of the entire outstanding loan

amount due towards the finance company. It was also one of the clauses

in the agreement that in the event, respondent No. 1 failed to pay the

amount, then the petitioner No. 2 was entitled to take back the possession

of the vehicle-truck in question. The respondent No. 1 has placed on

record certain receipts demonstrating the deposit of some amount with

the finance company.

10. The dispute in the instant case is with regard to the terms and conditions

of the agreement to sell dated 23.11.2020. A perusal of the order dated

03.07.2021 reveals that the learned Magistrate has recorded his

satisfaction with regard to the commission of offence under section 420

IPC but in order to find the veracity of the allegations, the complaint was

forwarded to the SHO Police Station, Billawar to conduct an inquiry

under section 202 Cr.PC.

11. The main grievance of the respondent No. 1 is that on 17.03.2021, the

driver of the respondent No.1 was plying the said vehicle and when he

reached at Village Sukrala Billawar at about 7:00 PM, all the accused

persons with their criminal and common intention snatched the said truck

forcibly from him by putting the said driver under the fear of causing

grievous injuries/killing as they claimed to have been armed with

weapons. Simultaneously, the grievance was also made that the petitioner

No. 1 had managed to release the said vehicle from the court by making a

false statement that it was his personal vehicle. Respondent No. 1 is

mainly relying upon the agreement to sell in order to lay a claim over the

truck in question and her main grievance is that the possession of the

truck be restored to her in terms of the conditions of the agreement

mentioned above. It would be relevant to take note of the averments

made in para-6 of the complaint which is reproduced as under:

"That all the accused have put the complainant in the wrongful loss of her hard earned money without any fault of her and now yesterday on 03.06.2021, all the accused threatened the complainant to do away with her and her husband's life, if she dare to contest any complaint against them. The complainant has made several requests to Police for restoring the possession of the said truck to the complainant but till date all in vain as such the complainant is filing this complaint against the accused persons so that an FIR against all of them may be registered against them and the possession of the truck no. JK08A-9569, model 2007 may be restored to the complainant in the spirit of the terms and conditions of agreement mentioned above."

12. It is evident that the respondent No. 1 in fact wants to get the possession

of the truck and for that purpose the respondent No.1 has resorted to

criminal proceedings for enforcement of her civil rights. Whether she is

having right of possession over the truck or not, the issue is required to

be considered by the civil court and the criminal proceedings cannot be

resorted to settle the civil dispute. It would be profitable to take note of

the observations made in Deepak Gaba v. State of U.P., 2023 SCC

OnLine SC 3, wherein Hon'ble Apex Court has held as under:

22. We are, therefore, of the opinion that the assertions made in the complaint and the pre-summoning evidence led by respondent no. 2

- complainant fail to establish the conditions and incidence of the penal liability set out under Sections 405, 420, and 471 of the IPC, as the allegations pertain to alleged breach of contractual obligations. Pertinently, this Court, in a number of cases, has noticed attempts made by parties to invoke jurisdiction of criminal courts, by filing vexatious criminal complaints by camouflaging allegations which were ex facie outrageous or pure civil claims. These attempts are not be entertained and should be dismissed at the threshold. To avoid prolixity, we would only like to refer to the judgment of this Court in Thermax Limited v. K.M. Johny 2011(13) SCC 412 as it refers to earlier case laws in copious detail.

In Thermax Limited (Supra), it was pointed that the court should be watchful of the difference between civil and criminal wrongs, though there can be situations where the allegations may constitute both civil and criminal wrongs. The court must cautiously examine the facts to ascertain whether they only constitute a civil wrong, as the ingredients of criminal wrong are missing. A conscious application of the said aspects is required by the Magistrate, as a summoning order has grave consequences of setting criminal proceedings in motion. Even though at the stage of issuing process to the accused the Magistrate is not required to record detailed reasons, there should be adequate evidence on record to set the criminal proceedings into motion. The requirement of Section 204 of the Code is that the Magistrate should carefully scrutinize the evidence brought on record. He/she may even put questions to complainant and his/her witnesses when examined under Section 200 of the Code to elicit answers to find out the truth about the allegations. Only upon being satisfied that there is sufficient ground for summoning the accused to stand the trial, summons should be issued(Birla Corporation Limited v. Adventz Investments and Holdings Limited and Others, (2019) 16 SCC 610; Pepsi Foods Ltd. (Supra); and Mehmood Ul Rehman v. Khazir Mohammad Tunda, (2015) 12 SCC 420). Summoning order is to be passed when the complainant discloses the offence, and when there is material that supports and constitutes essential ingredients of the offence. It should not be passed lightly or as a matter of course. When the violation of law alleged is clearly debatable and doubtful, either on account of paucity and lack of clarity of facts, or on application of law to the facts, the Magistrate must ensure clarification of the ambiguities. Summoning without appreciation of the legal provisions and their application to the facts may result in an innocent being summoned to stand the prosecution/trial. Initiation of prosecution and summoning of the accused to stand trial, apart from monetary loss, sacrifice of time, and effort to prepare a defence, also causes humiliation and disrepute in the society. It results in anxiety of uncertain times.